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State v Benimo [2002] PGNC 126; N2203 (18 April 2002)

N2203

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 273 OF 2002

THE STATE

-V-

SAMUEL BENIMO

POPONDETTA : JALINA, J.
10TH & 18TH APRIL 2002

CRIMINAL LAW – Manslaughter –Sentence – Death from stabbing with grass knife – Plea of guilty – First offender – Prevalence of death from domestic related violence – Need for deterrence – Criminal Code s.302.

Counsel:

Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoner

18th April 2002

JALINA, J. This prisoner has pleaded guilty to unlawfully killing one Ivy Dau at Marasa in the Oro Province by stabbing her with a grass knife on 8th September 2001. The deceased was a widow. The prisoner had apparently became angry at being ordered by the Village Court not to see her and try to create a relationship with her as he was a married man. The attack was sudden. It was not even done in the course of a domestic argument as is usually the case.

The Post Mortem Report of Dr. Donald Salapwi revealed the following on the deceased’s body:

(1) Penetrating wound on the right side, midway of the rib cage about 2 cm long opening with the depth of the wound measuring 43.5 cm.
(2) Another wound measuring 1 cm in length on the left loin region.
(3) The penetrating sharp object tore through the right lower lobe of the lung resulting in air being filled in the abdominal cavity. Blood vessels which were torn from the lungs caused severe internal bleeding into the abdominal cavity. The amount of blood was estimated at between 500 to 600 mls.
(4) The diaphragm was cut or penetrated together with the duodenum which allowed food to freely flow out and into the abdominal cavity. That caused her abdomen to swell as well as when food combined with the escaped airs.

The cause of death was pneumothorax and Haemorrhagic shock.

The maximum penalty for manslaughter is life imprisonment under s.302 of the Code subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code. The lesser sentence has been a term of years although the Court can impose the maximum penalty even for manslaughter.

In seeking a lenient sentence, the prisoner expressed remorse to God, to the community, and the country. Mr. N’dranoh has also sought a lenient sentence and he relied on mitigating factors such as his plea of guilty, his lack of prior convictions, and that he has young children to care for. Mr. N’dranoh also relied on his instructions that the prisoner has substantial properties but in the absence of independent verification, I do not place much weight on this and consider it to be a mere assertion only.

As has been stated by myself and other judges in the past, taking someone’s life prematurely for whatever reason is very serious and the length of sentence imposed will depend on the circumstances of death including what it was that the prisoner did in bringing about the death of the deceased. I simply repeat and adopt what other judges have said which I have referred to earlier today in my decision in The State –v- Brian Kasira CR 105 of 2002, Unreported. They include what Amet J (as he then was) said in The State –v- Rex Lialu [1988-89] PNGLR 449 at 352, what Amet CJ, Salika and Injia JJ said in Antap Yala –v The State, Unreported Supreme Court Decision in SCR 69/96, what Kirriwom J said in The State –v- Kenny [1999], Unreported Decision N1881 which are all referred to in the commentary on s.302 in Chalmers Weisbrot, Injia and Andrew, Criminal Law and Practice of Papua New Guinea, 3rd Edition (2000).

From those authorities, I would consider unlawful killing through the use of a weapon to be more serious than unlawful killing say through a kick resulting in the rupture of the spleen. Unlawful killing through the use of dangerous and life threatening weapons such as a bush knife, grass knife, axes and so on to my mind, indicates determination and total disregard for the risk of death or causing bodily injury to the victim and as such a higher sentence than that normally imposed for spleen death manslaughter would be warranted.

So in the present case, taking into account the mitigating factors but bearing in mind the prevalence of unlawful killing from domestic situation where weapons are used that the appropriate sentence be in the vicinity of 12 years so as to act as a deterrent both to the prisoner and others. So the sentence I consider appropriate is 12 years imprisonment in hard labour. I deduct from that sentence the 7 months and 1 week he has spent in custody which leaves 11 years, 4 months and 3 weeks in hard labour.

____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor